Two would-be Moses figures to Apple: Let my iPhones go!

[thatcrazycajun]

One of the biggest knocks against Apple Inc.'s much-ballyhooed iPhone is its being "locked in" to AT&T's cellular network. This means users who pony up the five or six C-notes required to purchase one have two problems: (a) no freedom of choice about which provider to use with it (a big issue for users already contracted to one of AT&T's competitors, such as Sprint Nextel, T-Mobile or Verizon Wireless, who cannot switch without triggering hefty early-termination penalty fees) and (b) being stuck with AT&T's comparatively slower-speed EDGE network for data transmission, rather than being able to access networks using the more modern and speedier (but less widely available) 3G standard. Evidently, Steve Jobs & Co. decided that having a signal, even a slower one, in more locations was better than higher speed but spottier access. (Insiders at Apple have claimed--anonymously, natch--that the next generation iPhone will give users 3G access.)

Now word has come of the existence of software hacks to break Ma Bell's lock on the iPhone, from two sources: a New Jersey teenager who has already been offered a lucrative job teaching such hacks to cellphone techs, and a company that sells software to break the lock--or will if it can get past high-powered lawyers for both AT&T and Apple, who are working overtime to put the kibosh on both schemes. Both sides are citing the Digital Millennium Copyright Act as backing for their positions, Apple and AT&T for illegal breaching of software protection measures and the hackers for exemptions to the DMCA announced last year by the U.S. Copyright Office. Based on coverage I've read so far, it looks very much like, one way or another, more and more iPhone owners will very soon be able to take their expensive new toys and go play on more than one network, and say "buh-bye" to AT&T.

osewalrus, you're the resident telecom legal eagle on my f-list; any thoughts? Anyone else? (My interest is purely academic; longtime Mac nut/Apple fan though I am, I'm not planning to splurge on an iPhone, unlocked or not, anytime soon -- my trusty little Motorola TracFone works just fine, thank you.)

Comments

As usual, it;s complicated....

[osewalrus.livejournal.com]

There's been a lot of chatter on this on the legal lists I follow. You are right that the Library of Congress identified phone unlocking as a DMCA exemption under the provision of the DMCA that calls for regular review and requests for exemption.

But the exemption applies for personal use. Is a business that provides tools to unlock your iPhone, or un;ocks your iPhone for you, covered by the exemption? Not so clear. OTOH, it is also unclear whether the DMCA properly applies under the Lexmark test. That case involved unlocking ink cartridges, and the court found that Congress had not intended the DMCA to protect ink cartridges.

So is it applicable? Congress _did_ intend to prevent breaking locks on devices that store real copyrighted content and can transmit that content digitally. But the unlocking of the iPhone does not go to the music or other content DRM. It goes to network connectivity.

Finally, there are legal arguments other than the DMCA. Everything from contract law to violation of FCC Part 15 certification regulations. As usual, this is a "shock and awe" campaign rather than a legal campaign.